Gregory Paul and Denise M. Violette - Page 4




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          $22,905.2  Petitioner concedes that MLIC made the payments on his           
          loans.  Petitioners did not report the amount on their Federal              
          income tax return for 1998.  Petitioner was prosecuted for, and             
          pleaded guilty to, 20 counts of defrauding credit unions and                
          insurance companies, including MLIC.                                        
                                     Discussion3                                      
               Respondent argues that the Form 1099-MISC from MLIC reports            
          an amount that represents a discharge of petitioner's                       
          indebtedness.  Petitioner argues that he did not receive the Form           
          1099-MISC, and therefore any income it reports is not includable            
          in income.                                                                  
               Section 61 defines gross income as "all income from whatever           
          source derived".  Section 61(a)(12) provides that gross income              
          specifically includes amounts received from a discharge of                  
          indebtedness (DOI).  A taxpayer may realize DOI income by paying            
          an obligation at less than its face value.  United States v.                
          Kirby Lumber Co., 284 U.S. 1 (1931).  The underlying rationale of           
          this principle is that a reduction in debt without a                        


               2 The Court notes that the amount identified on the Form               
          1099-MISC and in the notice of deficiency is less than the amount           
          of MLIC’s payments.  The Court proceeds based on the amount                 
          identified on the Form 1099 and determined by respondent.                   
               3Petitioners have made no argument that the burden of proof            
          shifting provisions of sec. 7491(a)(1), effective for Court                 
          proceedings arising in connection with examinations commencing              
          after July 22, 1998, have application to this case, nor have they           
          offered any evidence that they have complied with the                       
          requirements of sec. 7491(a)(2).                                            




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